Cinneadh
Ms X and Department of Agriculture, Food and the Marine
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-158359-L7T3V0
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-158359-L7T3V0
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
The Commissioner found that the Department had taken sufficient steps to determine that it does not hold environmental information relevant to the appellant’s request and accordingly was justified in refusing the request based on article 7 (5) of the AIE Regulations.
30 January 2026
1. This appeal relates to a decision by the Commissioner for Environmental Information, dated 11 March 2025, under case reference OCE-153894-N9Y5B4, where the Internal review decision in relation to request dated 14 September 2024 was annulled and the Department was directed to undertake a fresh decision-making process.
2. The original request in this appeal dated 14 September 2024 was as follows:
“I refer to the Briefing Note for the Secretary General meeting with Coillte Chair and Coillte CEO on 12 June 2024 (AIE/24/491), copy attached.
Please provide, by email, all information related to the review of alternative options by a DAFM ecologist for:
a) Setbacks from water bodies reducing the productive forest area
b) Conditions linked to protecting the badger habitat”
3. The Department responded to the appellant on 15 October 2024, refusing the request on the basis “no records exist.” The decision stated that searches were conducted andContact was made with…, DAFM Forestry Inspector, in relation to part b) of your request. who indicated that the review has not commenced. …DAFM Forestry Inspectors were also contacted in relation to your request, no records were received in relation to your request.
4. On 15 October 2024, the appellant sought an Internal review of the Department’s decision, highlighting that the decision did not confirm if any searches were undertaken or if the DAFM Forestry Inspectors responded to the contact made with them.
5. Following this Office’s remittal of the original internal review decision on 11 March 2025, the Department provided a new internal review decision on 31 March 2025.
6. As the appellant remained dissatisfied with the Departments position, on 20 April 2025, she appealed the matter to this Office stating that the Department had“continued to fail to demonstrate that all reasonable steps had been taken to identify the requested information before refusing the request under article 7.”
7. I am directed by the Commissioner to carry out a review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the Department. In addition, I have had regard to:
a. the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance);
b. Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
c. the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
d. The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
8. What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
9. In accordance with article 12 (5) of the AIE Regulations, the role of this Office is to review the public authority’s internal review decision and to affirm, annul or vary it.
10. The scope of this review is to determine whether the Department was justified in refusing access to the requested material under article 7 (5) of the AIE Regulations on the grounds that no information relevant to the request is held by the Department.
11. Article 7 (1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request, subject to the provisions of the AIE Regulations. Accordingly, if a public authority wishes to refuse access to environmental information held by or for it, it must do so under an exemption provided for in the AIE regulations.
12. In this case, the appellant contends that the Department has failed to conduct adequate searches in respect of her request. In the circumstances, article 7(5) of the AIE Regulations is the relevant provision to consider, where the question arises as to whether the requested environmental information or any further environmental information is held by or for the public authority concerned. It provides as follows;
“Where a request is made to a public authority and the information requested is not held by or for the authority concerned, that authority shall inform the applicant as soon as possible that the information is not held by or for it.”
13. Article 7(5) of the AIE regulations allows a public authority to refuse a request if it does not hold the requested information. In order for a public authority to successfully rely on this provision, it must, amongst other things, provide evidence that it carried out adequate searches for the environmental information requested. The requirement under article 7(5) of the AIE Regulations for a public authority to clearly set out the actions it has taken in response to a request is not only necessary for this Office in its considerations but also gives confidence to the appellant that suitable search procedures were conducted in response to their request.
14. It is important to note that where a public authority refuses a request for records under article 7 (5) of the AIE Regulations, the question this Office must consider is whether the public authority has taken all reasonable steps to ascertain the whereabouts of relevant records.
15. Article 7 (5) of the AIE Regulations does not require a forensic trawling exercise to be conducted by public authorities, rather a test of reasonableness and an adequate search exercise should be performed. I am satisfied that the appellants query “how was the change of policy communicated to key stakeholders” and that she “cannot know if my requested records exist or not” goes beyond the standard prescribed by Article 7 (5) of the AIE Regulations.
16. In its submissions to this Office, the Department outlined the steps undertaken with respect to searches for information relevant to this AIE Request. I have carefully examined the steps that the Department says it took to ensure all information relevant to the request has been identified which include consultation with various subject matter experts and specified searches carried out. It is the Department’s contention that no records (other than two documents provided) relevant to the request exist.
17. The Department advised that a named Inspector Grade 1, a subject matter expert (SME) had been contacted and asked to check his emails, files and drives for any records relating to the request. The named Inspector advised that any request to Ecology to review any proposed changes to setbacks along water bodies, would have issued from him to the Head of Ecology and as such he used the name of the Head of Ecology in his searches, which yielded no relevant results. The named Inspector confirmed that “no proposed change to such setbacks arose, so no such request issued.”
18. The Department also reiterated that the specified wording of the request was in relation to “water bodies” and that “comments have been exchanged on proposals concerning relevant watercourses, but not water bodies.” The Department advised that the Head of Ecology had confirmed that a review by a department ecologist in relation to “conditions linked to protecting the badger habitat” had not commenced. The Head of Ecology also caried out a search of their share drive using the search words “badger guidelines.” The Head of Ecology also provided information on two documents that feed into the current badger conditions and provided links to the documents which were made available to the appellant.
19. The Department also stated that a named Higher Executive Office and Assistant Principal in the Foresty Division- (Coordination and Coillte) clarified a number of points in relation to the Briefing note for the Secretary General on 12 June 2024. This included that they had written the Briefing note for the Secretary General and that the information in the Briefing note stating a “DAFM ecologist is currently reviewing alternative option in relation to both these conditions” was received from a named Inspector, Grade1 in Felling. It also included that the ecology review referred to in the Briefing note, related to Badger habitats only and had nothing to do with water bodies, aquatic zones or setbacks. The Higher Executive Officer confirmed “the 2 conditions reference relate to the 2 bullet points listed under the badger habitats” and that “the discussion in the OCEI review on the water bodies/courses/setback therefore is not relevant to this review.”
20. Further, the Department advised that the Head Ecologist stated that a review of the conditions linked to protecting the badger habitat had not commenced. She confirmed that she conducted searches of the Department’s shared drive and eDocs using the phrase “badger guidelines” and reference was made to the two documents she had referred to at Internal review stage.
21. The Department advised that the Forestry Division Head of Environment and Forestry Hydrologist, were the relevant SMEs in relation to the “setbacks from water bodies” aspect of the review. The Forestry Hydrologist stated that the request was more appropriate for Ecology and was not relevant to his area. The Head of Ecology advised it was not within her area. The Head of Environment advised that he had no records in relation to setbacks from waterbodies having checked his personal email using the keyword “Fahy”. He explained:“Any request to ecology to review any proposed change to the setback along water bodies would have issued by me to Dr (named) Head of Ecology. However, no proposed changes to such setbacks arose, so no such requests issued. A 20-minute search was undertaken in case I overlooked something.”
22. As part of the Internal Review decision process, the Department advised that the decision maker contacted the Forestry Division’s Coillte Corporate Governance and Coordination Unit (CCGC) who confirmed that they had written the Briefing note and that they had received the relevant text from a named Forestry Inspector, Grade 1, Felling section. It was clarified by the Assistant Principal in the CCGC Unit, as set out on page 3 of the Briefing Note, that the mention of a “DAFM ecologist” reviewing “alternative options in relation to both these conditions”, referred to the two conditions mentioned in the same paragraph, “Conditions linked to protecting badger habitat” and not the paragraph which started on the previous page, entitled “Setbacks from water bodies reducing the productive forest area”.
23. The Decision maker also advised that they were unable to locate a response to the request from the named Felling Inspector (Grade 1) or his direct report (named Forestry Inspector, Grade 2). The Department advised that the named Grade 1 Felling Inspector is currently on long term sick leave, however the decision maker “would not expect him to have any additional records, if Felling section had been involved as, any such review would have gone through (named Felling Inspector Grade 1). He was contacted directly, and he confirmed that he had no records in relation to the request dated before 14 September 2024. He searched his email inbox using the keywords “badger” and “badger review” and he also confirmed that the Department’s Ecologists were not involved in a review of water setbacks.
24. The decision maker also stated that “In an abundance of caution, and despite the fact that it is clear that the proposed review mentioned in the Briefing Note did not relate to water setbacks”, they contacted the Forestry Hydrologist, who confirmed that he had no records. The Forestry Hydrologist conducted searches of his email inbox, his own drive and shared drive using the search terms "setbacks from waterbodies", "setbacks from rivers", "productive area", "badger habitat” and "badger setts" and found no records relevant to the request.
25. The Department also stated that it is evident the statement that “A DAFM ecologist is currently reviewing alternative options in relation to both these conditions”, was referring to the two conditions linked to the protection of badger habitats below and not to water bodies setbacks:
• A 50m exclusion zone must be established around the sett where trees can only be felled manually.
• All works must be confined to daylight hours and no artificial lighting is to be used onsite.
26. The Department concluded by reiterating that the Head of Ecology, who would be the lead on any such review, confirmed that no such review had taken place and she conducted a search of her records which yielded no results relevant to the request. The Department also stated that this was confirmed by the subject matter experts in Felling, Forestry Environment and Hydrology and it’s the Department’s position that all reasonable searches have been carried out.
27. While it is not the function of this Office to comment on the erroneous inclusion of the statement contained in the Briefing note for the Secretary General meeting with Coillte Chair and Coillte CEO on 12 June 2024, I am persuaded, by the Department’s explanation that no such review in fact took place. In particular, the named Inspector/ Head of Environment advised that any request to Ecology to review any proposed changes to setbacks along water bodies, would have issued from him to the Head of Ecology and he confirmed that no such request issued. The Head of Ecology also confirmed this position. I am also cognisant of the statement made by the Head of Environment that “there aren’t multiple people to contact, or multiple records to consult, or indeed, multiple key words to search by.” This position was also confirmed by named Felling Inspector Grade 1 and the Forestry Hydrologist and as such, the relevant (SME’s) have adequately confirmed that no such review took place. I further note that Head of environment conducted a twenty -minute search in case he “overlooked something”.
28. In relation to the SME’s position that the specified wording of the request was in relation to “water bodies” and that “comments have been exchanged on proposals concerning relevant watercourses, but not water bodies, I note that the HEO and AP in the Forestry division (coordination and Coillte) confirmed that the “ecology review” referred to in the Briefing note, related to Badger habitats only and had nothing to do with water bodies, aquatic zones or setbacks. I further note the comment of the HEO that “the 2 conditions reference relate to the 2 bullet points listed under the badger habitats” and that “the discussion in the OCEI review on the water bodies/courses/setback therefore is not relevant to this review.”
29. Further, the assistant principal officer in the CCGC Unit, in reference to page 3 of the Briefing Note, confirmed that the mention of a “DAFM ecologist” reviewing “alternative options in relation to both these conditions”, referred to the two conditions mentioned in the same paragraph, “Conditions linked to protecting badger habitat” and not the paragraph which started on the previous page, entitled “Setbacks from water bodies reducing the productive forest area”. The Head of Environment also confirmed this position. Whilst I acknowledge the confusion the wording/lay out of the Briefing note has caused, I am satisfied that the SMEs have now clarified the position and no records exist in relation to water bodies/setbacks.
30. I note the appellant has described the Departments searches as “fractured” and manifestly narrow” and she proposed the use of “broader search terms”, such as “badger”, “setback”, “waterbody”, “buffer”, “riparian”, “Coillte”, “review”, “conditions.” I have considered these proposed search terms, however in the context of this appeal and in particular the Department stating that no such review took place, I am not convinced that broader search terms would reveal anything further. I am satisfied that the search terms used by the various SMEs, which included the name of the Head of Ecology and the words “badger” and “badger guidelines” are sufficient in the circumstances where any such review would have gone through the Head of Ecology or named Inspector.
31. I note the appellant’s comments that the Departments position, that no review of badger conditions had actually commenced is “extremely difficult to reconcile with a briefing telling the Secretary General that such a review “is currently reviewing” options”, and that one would expect records to have been generated. However, it is important to note that the question this Office must consider is whether the public authority has taken all reasonable steps to ascertain the whereabouts of relevant records. The Regulations do not require absolute certainty as to the existence or location of records, as situations arise where records are lost, or simply cannot be found, or indeed, may have been destroyed in line with the body’s records management policies. The passage of time is also a relevant factor in such appeals. It is also important to note that the Commissioner does not generally expect public authorities to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist or rejects a public authority’s explanation of why a record does not exist. The test set out in article 7 (5) of the AIE Regulations is whether the public authority has taken all reasonable steps to locate the record(s) sought.
32. I further note the appellants criticism of the date range used by the Department. In normal course an AIE request is confined to the date range provided by the appellant and book ended by the date of the request. I fail to see how a subsequent review, referenced by the Head of Environment,) could form part of the scope of this AIE request, however it is open to a public authority to provide more information where appropriate.
33. I also note the appellants contention that the Department had effectively argued: “because no review took place, no information can exist” and she opined that is not a safe or lawful inference to make. I do not accept this position. Various SMEs repeatedly stated from their direct knowledge, that no review took place and out of an “abundance of caution” carried out searches on emails, files, drives and e docs.
34. The appellant also argued that the Department should have specifically carried out a “structured search of all relevant units” and the Department should have provided a structured list of systems. I accept that a “comprehensive itemised description of systems” is useful when analysing if searches conducted are adequate and reasonable, however I am satisfied based on the descriptions of searches, search terms utilised and SMEs consulted, (Ecology, Environment, Forestry Division, Felling Coordination & Coillte) that a thorough search was performed and sufficient relevant units consulted.
35. In the appellant’s appeal to this Office dated 20 April 2025, she stated “I would like to know on what day and at what times did the SME's referred to conduct their searches. How long did each search take? What search terms did they use? What matches did they get? How were the results filtered?” She also stated, “I need to be satisfied that the right people were requested to undertake searches, the right data sources were searched, that the search terms and methods were meaningful and the results of the searches were correctly filtered to extract relevant information.” The AIE Regime is not intended to be a questions and answer procedure. I am not persuaded by the appellants statement the “Department had not identified the searches conducted to form the basis for its assertion that no further records exist.” I am satisfied that the queries raised in the circumstances of the appeal go beyond the standard of “reasonable searches” are required by article 7(5).
36. Considering the circumstances of this appeal, I am persuaded based on the information before me that the Department has taken sufficient steps to determine that it does not hold environmental information relevant to the appellants request and accordingly, was justified in refusing the request based on article 7 (5) of the AIE Regulations.
37. It is notable in this case that while I am satisfied with the information provided by the Department to this Office following queries raised by the Investigator assigned to this appeal, the original and internal review decision provided to the appellant, lacked sufficient detail to address the issues raised I remind the Department of its duty to give reasons, most crucially at internal review stage, when issuing decisions under the AIE regime. Had greater detail been provided to the appellant at the internal review decision stage, it may well have avoided the appeal to this Office.
38. In all the circumstances, in particular the Department explanation that no review in fact took place, I am satisfied that the Department has taken sufficient steps to determine that it does not hold environmental information relevant to the appellant’s request and accordingly was justified in refusing the request based on article 7 (5) of the AIE Regulations. For the sake of completeness, I note the appellant has the option to submit a free request for information beyond the scope of her original request, should she wish to do so.
39. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the Department’s decision.
40. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Gemma Farrell
On behalf of the Commissioner for Environmental Information